456px-Court_of_Justice_of_the_European_Union_emblem.svgThe Court of Justice of the European Union made a stunning miscalculation by upholding the “right to be forgotten” and thereby asserting that search engines will be held accountable for results that impede upon an individual’s right to privacy.

First, the EU’s ruling that a citizen can ask a search engine to remove results that are “inadequate, irrelevant or no longer relevant, or excessive in relation to the purposes for which they were processed” places unprecedented power to interpret and enforce the law in the hands of corporations such as Google. Second, the ruling creates a transnational norm of Internet censorship that repressive regimes outside the EU may use to justify extreme efforts to stem the free flow of digital information within their own borders.

Search engines are corporations with a primary duty to shareholders and as such, will be driven to comply with the new EU law so they may continue to operate in all markets in which it is in force. This preference to placate government actors rather than the preservation of the free flow of information over digital channels has been seen time and again amongst major search engines and could result in a massive precipitation of unnecessary censorship.

As such, government officials have the power to lobby companies like Google and Yahoo! to interpret the broad language of the EU ruling as they see fit. The opportunity for government manipulation of search results is ripe. Alarmingly, Google has decided of its own volitional to extend the “right to be forgotten” to Iceland, Liechtenstein, Norway and Switzerland. As such, the corporation has agreed to remove information from its indexes in these countries without any legal requirement, resulting in a purely private suppression of information.
The second negative implication of the ruling is global. The EU’s ruling sets an alarming global precedent that repressive regimes may adapt to cloak their extreme repression of information. If the Court of Justice of the European Union requires certain information to be removed from the Internet, a repressive regime may liken their sweeping policies to that of the EU to justify digital censorship as a widely accepted practice. Likewise, the EU loses substantial creditability to lobby for greater free speech and information in non-democratic countries.

The UN considers free speech a human right; the free flow of information is necessary to create informed citizens and maintain the integrity of democracy. The EU is engaging in a dangerous game that results in both public and private censorship of the Internet. The ruling could signal that the Court may continue to expand the right of the individual so that it encroaches on the ability of the collective to access information via digital means resulting in a decrease in both free access to information and innovation.

Could this ruling be the beginning of the end for the Open Internet?

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About Author

Lauren Kreiser, J.D. is a law clerk with the Pierce Law Group in Beverly Hills, CA focusing on entertainment law with an emphasis on film and television

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